by John Deigh. Oxford: Oxford University Press. 2008. 264pp. Cloth $65.00/£40.00. Cloth. ISBN: 9780195169324.Reviewed by Kang Chen, Daw & Ray, LLP. Email: kchen28 [at] yahoo.com.
pp.883-887
EMOTIONS, VALUES, AND THE LAW consists of ten essays, eight previously published, by John Deigh, Professor of Philosophy and Law at the University of Texas at Austin. Whenever any person holds such a joint appointment, it is reasonable to ask whether one discipline is primary for that person. In the case of Professor Deigh, there can be no doubt: he is a professional philosopher who has an interest in law rather than a lawyer with an interest in philosophy; fittingly, the very first word in his book is “Philosophy” (p.vii). However, this book is not intended to be a contribution to the discipline of philosophy broadly, but rather, as Deigh himself states, to the analytic tradition in Anglo-American moral philosophy specifically. The book seeks in the first instance to answer questions that have arisen within the analytic tradition about “the nature of emotions and their place in the thinking and practices that morality encompasses” (pp.vii-viii).
The primary audience for this book, then, is readers familiar with recent debates in analytic philosophy concerning the nature of emotions and their role in morality. Since I have no such familiarity, I am not part of the primary audience for this book. Consequently, the purpose of my review cannot be to offer a professional critique of a colleague’s work, for I am not competent to judge Deigh’s work qua contribution to analytic moral philosophy. However, I suspect that many readers of this REVIEW will likewise not be fully up-to-date on the most recent debates between cognitivists and subjectivists. My review is offered as a guide to those readers who are intrigued by the title of the book and wish to know what to expect within its covers.
Broadly speaking, this collection can be divided into two parts. In the first part, consisting of chapters one through four, Deigh gives an account of the nature of emotions and their relation to valuation. In the remainder, he explores particular moral topics, some of which are related to the law, such as his chapters on “Emotions and the Authority of Law” and on criminal insanity, and not all of which have much if anything to do with his theory of emotions.
Let me begin as Deigh begins, with his theory of emotions. There are two features of emotions that he wishes to highlight: (1) their intentionality (i.e., emotions are directed at or toward something) and (2) their commonality to both humans and nonrational animals. “[A]ccounting for both [features] has proven to be surprisingly difficult” (p.18). Indeed, the “main problem for the study of emotions now is how to develop a theory that reconciles these two facts” (p.38). According to Deigh, standard cognitivism consists in the view that every emotion contains evaluative (and hence propositional) thought, and [*884] therefore cannot provide an account of the emotions of nonrational animals that do not possess linguistic capabilities (pp.19-20). Again according to Deigh, Darwinism consists in the view that an emotion is a “neurophysiological event that occurs when an affect program is activated” (p.30), and cannot adequately explain the intentionality of emotions, because it has to allow that these events could occur even if they are unintelligible responses to an object (pp.32-33). Let us assume that Deigh has accurately summarized the arguments of cognitivists and Darwinists. What he proposes is the marriage or the mating of cognitivism and Darwinism.
He calls the product of this union “the environmentalist theory” (p.90). It begins by accepting the cognitivist thesis that “every emotion contains some thought” (p.91). However, it rejects the thesis that every emotion contains evaluative thought. It makes a distinction between primitive emotions and tutored emotions. Primitive emotions – i.e., the emotions common to humans and beasts – are emotions that arise spontaneously in response to objects with certain sensory properties. Tutored emotions – i.e., emotions which presuppose knowledge of values – are emotions that arise in response to objects about which one has made some evaluative judgment
(p.92). As Deigh readily admits, “the important assumption here . . . is that the class of sensory properties defining an emotion’s intentional object excludes the class of evaluative ones” (pp.92-93). Some emotions are experienced immediately and instinctively, without any conceptual mediation and hence without the need of inference (see p.58). For example, sudden and loud noises produce fear, and foul tastes and smells produce disgust. These are examples of primitive fear and primitive disgust. These emotions do not need to be learned; they have no conceptual content. By contrast, fearing dangerous objects and being disgusted by spoiled food are examples of tutored emotions, since they presuppose knowledge of the concepts of dangerousness and rottenness (pp.91-92).
There is a certain plausibility to Deigh’s theory, even if his exposition of it suffers from some inconsistencies (for example, he contends that every emotion contains some thought; hence even primitive emotions contain some thought; but primitive emotions are triggered by sensory properties and experienced instinctively; and instincts operate “independently of thought” (p.14); also, divergences in color vocabularies suggest that secondary qualities are not as concept-free as his attack on Humean theorists suggests and as his own theory requires (see MacIntyre 2006, ch. 2)). Furthermore, he gives an insightful account of the development of our emotional life by laying out how socialization transforms primitive emotions into tutored emotions (see p.117). However, it is precisely his elucidation of our emotional development that points to deficiencies in his general account of emotions and morality.
Deigh’s account of emotional development is supposed to enable him to explain how emotions become responsive to reason (see pp.67-68). On his theory, tutored emotions are responsive to reason, whereas primitive emotions are not. He gives the example [*885] of people who find cooked sea slugs disgusting (pp.86-87; see also pp.117-18). The person who feels that way could reason to herself, “It’s just an accident of my upbringing that I don’t fancy eating sea slugs.” A person who thinks that way would not assign a negative value to cooked sea slugs, and may eventually be willing to try them and find that she has a taste for them. What Deigh says about sea slugs should apply, mutatis mutandis, to human flesh; an aversion to eating human flesh is as arbitrary as an aversion to eating sea slugs (especially when one contemplates the reasons Deigh considers for possibly experiencing disgust at eating sea slugs). And yet I think most of us (apologies to the cannibalistic readers of this REVIEW) would not be able to change our emotional response to eating human flesh merely by reminding ourselves that our disgust is largely a cultural artifact. Our strong visceral reaction against cannibalism would seem to indicate that at least some tutored emotions are just as nonresponsive to reason as primitive emotions. That is, if being responsive to reason means that we can, in principle, reason our way out of an emotion or modify an emotion, then it seems to be the case that some tutored emotions are as intransigent to reason as some primitive emotions. It may even be that the emotions most resistant to reason are not primitive emotions but certain tutored emotions. But if this is true, then we would need a different account of what makes emotions responsive to reason than the one Deigh provides.
The main problem with Deigh’s account, then, is not primarily his theory of emotional development, but rather his account of the linkages between emotions on the one hand and valuation and reasoning on the other. The deficiencies of his account show up especially vividly in his attempt to articulate an “emotion-based account of the law’s authority” (p.147). On Deigh’s view, the authority of law derives from an emotional bond between the law and its subjects, and such a bond can form even when the law is completely arbitrary and incomprehensible, without any moral attributes whatsoever (p.138). Deigh believes that he has found in Kafka’s THE TRIAL evidence for his argument. In his words, “the law’s authority in this world is compellingly evident throughout the novel” (p.137). That statement, taken by itself, is not wholly wrong. But Deigh neglects what makes a Kakfa story Kafkaesque. What makes a world Kafkaesque is the incongruity of a protagonist who thinks and acts as if the world were normal in the face of the outrageously absurd. The protagonist in THE TRIAL acts as if he is living in a world in which justice and reason are real forces, when he in fact lives in a world created by Kafka’s unique imagination. Kafka shows that the idea of legal authority in such a world is ridiculous, and therewith that emotional attachment to such a legal system, though possible, is ridiculous.
But I have gotten ahead of myself. I should first sketch Deigh’s “emotion-based account of the law’s authority.” Deigh wants to make a distinction between authority and power. Let me quote him at some length. “[W]hile the power of government to coerce obedience is conditioned on the subjects’ vulnerabilities to harm and capacities for fear, the authority of law must be conditioned on something more. This additional factor, moreover . . . must be the subjects’ allegiance to the law, their [*886] willingness to be governed by the law . . . It must, in short, be the subjects’ willingness to subordinate their own ends to the ends the law sets for them” (p.147). First, I think it is more accurate to say that modern law constrains its subjects’ ends rather than that it sets its subjects’ ends. That quibble aside, “willing subordination” is the key to the law’s authority. However, it is not clear that that feature is a feature of authority. Authority is a matter of right, specifically, the right to impose an obligation; it designates a hierarchical and non-egalitarian relationship. However, willing subordination can occur even in relations of equality. A person may willingly subordinate his or her ends to the ends of his or her spouse without acknowledging that the spouse wields authority over him or her. It may even be that once one spouse makes a claim to authority over the other, the other will no longer be willing to subordinate his or her ends to the spouse; whereas it is an essential feature in matters of right that the assertion of one’s claim to that right does not diminish, much less extinguish, that right. Professor Deigh, being a married man, should know this better than I.
Deigh’s emotion-based account of the law’s authority models legal authority upon parental authority. He argues that legal and parental authority do not require any basis in legitimacy. However, his attempt to divorce law’s authority from legitimacy is unpersuasive and partially results from his failure to adequately keep in mind some basic features of law. This is ironic because he criticizes Hart for failing to adequately conceptualize the distinctiveness of law’s authority as the authority of a system of government. Had Deigh himself properly conceptualized the distinctiveness of law’s authority, he would have seen the disanalogy between law’s authority and parental authority. He does not consider why in the Western tradition children are commonly thought to outgrow their parents’ authority, whereas citizens and subjects are not thought to outgrow the law’s authority.
The analogy from parental authority to law’s authority suffers from two closely related defects. First, laws, unlike parents, can be changed, and often are changed; in the extreme case, laws can be overturned more or less in toto. Second, laws are objects of reflective choice and rational deliberation; they are preserved if good and changed if bad. A significant portion of political life consists in the assessment of the desirability of current or proposed laws. The authority of “law” is at least partially derivative from the fact that laws are objects of reflective choice. Every body of law makes an implicit claim to be legitimate and good for its subjects, and on that basis makes a claim to the subjects’ allegiance and obedience. To focus solely upon emotions in accounting for legal authority, as Deigh does, is to be blind to the nature of law and thus blind to the nature of legal authority. No doubt that is why justice is not a theme for Deigh, nor the emotion most directly related to justice, moral indignation or anger.
Perhaps that blindness also explains why the ten essays in this collection do not form a coherent and well-ordered whole, and relate to each other only haphazardly. Whatever the strengths of Deigh’s book (the chapter on promises gives a powerful argument regarding the [*887] nature and origins of the obligation to keep promises under conditions of hostile conflict), it fails to provide cogent links between emotions, values, and the law.
REFERENCES:
Deigh, John. 2008. EMOTIONS, VALUES, AND THE LAW. Oxford: Oxford University Press.
MacIntyre, Alasdair. 2006. SELECTED ESSAYS, Vol. 1: THE TASKS OF PHILOSOPHY. Cambridge: Cambridge University Press.
© Copyright 2009 by the author, Kang Chen.
